Paid parental leave punt

Australia's official position of acceding to the Optional Protocol so long ago, and a quarter of a century later still withholding these rights from its people by its exemption, surely will now be tested if Mr Rudd doesn't come good on his promise. No doubt unions, women's organisations and NGOs will explore that question, if they haven't already done so.

If the Government's paid maternity leave reservation is not a valid exemption, it is probably possible (PDF 13KB) for an action to be brought.

There are several preconditions before the CEDAW Committee will consider a case. The first is who may submit the case. A communication can be submitted directly by the victim or group of victims whose rights under CEDAW have been violated or by other individuals or groups filing on behalf of the victims.

An important second requirement is that existing national remedies have been fully utilised. The difficulty for the Australian Government is that the requirement has recognised exceptions, and the Committee may waive the exhaustion requirement if no effective remedies exist. Not surprisingly, Australia probably is just such a place.

Recent submissions to the Senate Standing Committee on Legal & Constitutional Affairs Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality noted (PDF 858KB) the absence of any maternity leave legislative requirements.

Isn't this suggesting that that no domestic remedy exists?

The current economic crisis may not be the fault of the Rudd Government, but there have been several economic highs and lows since 1983 and plenty of opportunities of letting go of the exemption.

And there have been plenty of calls for paid maternity leave to be given to Australians, among them the 1999 National Pregnancy and Work Inquiry, Pregnant and Productive: It's a right not a privilege to work while pregnant; the 2002 report A Time to Value: Proposal for National Maternity Leave Scheme, which reported overwhelming public support for a national paid maternity leave scheme; the 2007 It's About Time: Women, men, work and family which reiterated the priority need for a national paid maternity leave scheme; and the very recent 2009 Productivity Commission report. Recent independent economic modelling has shown that we can afford it and yet still Australians wait.

It's not as though the Government doesn't know about its obligations under CEDAW, either.

The Human Rights and Equal Opportunity Commission submitted to the Senate Legal and Constitutional Affairs Committee that ... “It is also widely acknowledged that the Sex Discrimination Act (SDA) has never fully implemented our international legal obligations, particularly under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women”.

It seems to me that the end result of all that is that Australia is well and truly signed on to the CEDAW Optional Protocol and that its only shield from an aggrieved person with standing is a potentially invalid reservation.

In a country without universal government funded paid parental leave, with a significant gender pay gap, with one of the lowest labour force participation rates of OECD countries for women aged between 25 and 44 years, where women bear the most responsibility overall for unpaid work to the detriment of their own personal economic security , with the Australian Bureau of Statistics figures confirming that one in three Australian women will suffer domestic violence and one in five will fall victim to a sexual assault, in the midst of a worsening global economic crisis and where limited or no legal remedies exist for aggrieved persons, I would have thought it shouldn't be too difficult to find complainants who, both as individuals and a group, are personally and directly affected by laws, policies, practices, acts or omissions of the Government in relation to paid maternity leave which violate their rights under the CEDAW Convention.

An important third precondition to taking advantage of the Optional Protocol is the requirement that “a communication” must refer to facts which occur after the entry into force of the Optional Protocol. If the foundational facts have occurred before the Protocol came into force, a complaint regarding them is inadmissible, unless these facts continued after that date. The Optional Protocol enters into force three months after ratification or accession.

Australia only acceded to the Optional Protocol in December 2008, but it's now well and truly "in". So a failure to introduce government funded paid parental leave in the May 2009 budget may well see things heat up in the second half of this year.